Disability

by Kate Russell

Defence

Once it has been established that an employee has been treated less favourably for a reason arising from his disability, the court will have to consider whether the employer has a defence.

Under the Disability Discrimination Act, employers only had to show that the treatment was ‘justified’. The Equality Act removes the defence of justification and will only accept less favourable treatment if it is ‘a proportionate means of achieving a legitimate aim’.

What will, and what will not constitute a defence?

The provision requiring employers to prove that their treatment of a disabled employee was a proportionate means of achieving a legitimate aim is likely to create uncertainty until new case law has been created to give employers guidance.

Until then, proceed with caution.

Less favourable treatment of a disabled person will be a proportionate means of achieving a legitimate aim only if the reason for it is both material to the circumstances of the particular case and substantial. This means that the reason has to relate to the individual circumstances in question and not just be trivial or minor. Some illustrative examples are given below.

Examples

Someone who is blind is not short-listed for a job involving computers because the employer thinks blind people cannot use them. The employer makes no effort to look at the individual circumstances. A general assumption that blind people cannot use computers would not in itself be a material reason. It is not related to the particular circumstances.

Someone who has psoriasis is rejected for a job involving modelling cosmetics on a part of the body which in his case is severely disfigured by the condition. That would be lawful if his appearance would be incompatible with the purpose of the work. This is a substantial reason which is clearly related – material – to the individual circumstance.

Less favourable treatment cannot be a proportionate means of achieving a legitimate aim where the employer is under a duty to make a reasonable adjustment but fails to do so.

For example, an employee who uses a wheelchair is not promoted, solely because the work station for the higher post is inaccessible to wheelchairs, though it could readily be made so by rearrangement of the furniture. If the furniture had been rearranged, the reason for refusing promotion would not have applied. The refusal of promotion would therefore not be justified.